Ronnie Lee Maupin v. Steve Smith, Superintendent, Kentucky State Reformatory and Steven L. Beshear, Attorney General of Kentucky

785 F.2d 135, 1986 U.S. App. LEXIS 22728

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 5, 1986
• Docket: 84-5446
• Status: Published

Opinions

BOYCE F. MARTIN, JR., Circuit Judge.

Ronnie Lee Maupin appeals the district court’s denial of his habeas corpus petition. Maupin was tried and convicted in 1977 of the murder of William Drew and was sentenced to twenty years in prison. Maupin alleges that his conviction is invalid because it was based on insufficient evidence and because he was denied effective assistance of counsel.

I.

On the evening of August 8, 1976, Maupin, Arthur Jones, and William Drew drove to an isolated wooded area where William Drew said he could get a gallon of moonshine. The three men left their car parked in the middle of a gravel road and walked into the woods where the moonshine was located. After Maupin, Jones, and Drew had walked back to the car, Maupin claims that someone began shooting at the three of them from across the road. Maupin was hit in the arm by a shot, and Jones was also injured. According to Maupin, he and Jones scrambled into the car, and Maupin tried to drive down the road but after a short distance he drove into a ditch. Maupin claims he does not know what happened to Drew because of his haste to leave the scene.

Maupin and Jones then apparently walked to a nearby house where Greg Phillips was watching television. Phillips testified that Maupin and Jones were both bloody and that he and Jones helped Maupin into a car to take him to meet an ambulance. Maupin told Phillips during the trip to the hospital that a man named George Drew had shot at them. William Drew was to have been a witness at George Drew’s trial for the murder of Phillips’ father.

Maupin claims that the next day he, Jones, and Maupin’s brother went back to the site of the shooting to dig their car out of the ditch. When they got there, they discovered the body of William Drew, and they phoned the state police from a nearby home. Detective Jim McWhorter of the Kentucky State Police immediately came to investigate the incident.

Detective McWhorter determined through his investigation that Maupin’s version of the facts was entirely inconsistent with the physical evidence from the scene of the crime. There was no evidence that anyone had been in the bushes from where Maupin claimed the shots originated. Drew was shot at close range (18-36 inches) instead of from a considerable distance as Maupin claimed. McWhorter found no bullet or pellet holes in the car where Maupin claimed he and Jones were standing when shot. In fact, Detective McWhorter found evidence that the shots had come from the direction of the car, which was directly contrary to Maupin’s version. Detective McWhorter also determined, after talking to members of George Drew’s family, that Drew was at home on the night of the shooting.

Detective McWhorter further testified at trial that William Drew’s body was found thrown in some bushes approximately thirty feet from where he had been shot. McWhorter based this conclusion on the fact that a trail of blood could be traced back to the place of the shooting. Drew had been shot in the arm and hit by a blunt object to the back of his head, and the cause of his death was loss of blood. A second trail of blood led to the body of the victim, the inference being that that trail belonged to Maupin. Several spent shotgun shells were found in the road near the scene of the shooting.

Although Maupin testified that neither he nor Jones had a gun at the time of the shooting, Maupin had been seen with a shotgun earlier in the day. Maupin also told Greg Phillips that he had lost a shotgun at the scene of the crime. Moreover, Jones had a shotgun with him when he and Maupin came to the Phillips’ house after the shooting.

Based on this evidence, a jury found Maupin guilty of murder. In a separate trial, Jones was also found guilty of Drew’s murder, but his conviction was reversed by the Kentucky Supreme Court for insufficient evidence. The Kentucky Supreme Court refused to consider Maupin’s insufficient evidence claim on appeal because his trial counsel had failed to move for a directed verdict at the close of all the evidence as required by Kimbrough v. Commonwealth, 550 S.W.2d 525 (Ky.1977). Maupin then sought to have his judgment vacated on the ground that his counsel was ineffective for failing to move for a directed verdict, and the Kentucky courts also rejected this claim. Maupin thereupon filed this habeas petition in federal district court.

The district court, rejecting the magistrate’s recommendation, held Maupin’s failure to move for a directed verdict at the end of all evidence precluded review of his insufficient evidence claim under the “cause and prejudice” standard of Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). Although the district court found adequate cause for Maupin’s failure to seek a directed verdict, the district court concluded that Maupin was not actually prejudiced because the Kentucky Supreme Court could have waived the state procedural requirement and because there was no merit to Maupin’s insufficient evidence claim. The district court did not discuss Maupin’s ineffective assistance of counsel claim.

II.

When a state argues that a habeas claim is precluded by the petitioner’s failure to observe a state procedural rule, the federal court must go through a complicated analysis. See generally L. Yackle, Post-Conviction Remedies § 84 (Supp. 1985). First, the court must determine that there is a state procedural rule that is applicable to the petitioner’s claim and that the petitioner failed to comply with the rule. In this case, Maupin concedes that Kentucky has a judicially created rule that a defendant must move for a directed verdict at the end of all evidence to preserve an insufficient evidence claim. Kimbrough v. Commonwealth, 550 S.W.2d 525 (Ky.1977). The magistrate found as a matter of fact that Maupin’s counsel failed to move for a directed verdict at the close of all evidence, and Maupin does not challenge that conclusion.

Second, the court must decide whether the state courts actually enforced the state procedural sanction. See County Court of Ulster County, New York v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 2220, 60 L.Ed.2d 777 (1979); Meeks v. Bergen, 749 F.2d 322, 325 (6th Cir.1984); Melchior v. Jago, 723 F.2d 486, 490 (6th Cir.1983), cert. denied, 466 U.S. 952, 104 S.Ct. 2156, 80 L.Ed.2d 542 (1984). In this case, the Kentucky Supreme Court explicitly refused to consider Maupin’s insufficient evidence claim because of his procedural default.

Third, the court must decide whether the state procedural forfeiture is an “adequate and independent” state ground on which the state can rely to foreclose review of a federal constitutional claim. See Allen, 442 U.S. at 148, 99 S.Ct. at 2220; Sykes, 433 U.S. at 78, 81, 97 S.Ct. at 2502, 2503. See also Blair v. Kentucky, 449 U.S. 962, 101 S.Ct. 377, 66 L.Ed.2d 230 (Brennan, J., dissenting from denial of certiorari). This question generally will involve an examination of the legitimate state interests behind the procedural rule in light of the federal interest in considering federal claims. See Henry v. Mississippi, 379 U.S. 443, 446-48, 85 S.Ct. 564, 566-67, 13 L.Ed.2d 408 (1965). Here, Maupin at one point advanced the argument to the district court that the Kentucky procedural rule was not an adequate and independent state ground, but he later withdrew that argument. That argument has not been advanced in these proceedings.¹

Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate under Sykes that there was “cause” for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error. Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 2908, 82 L.Ed.2d 1 (1984); Engle v. Issac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982); Sykes, 433 U.S. at 87, 97 S.Ct. at 2506; Payne v. Rees, 738 F.2d 118, 124 (6th Cir.1984).²

The district court found that there was “cause” for Maupin’s failure to move for a directed verdict because Maupin’s counsel simply forgot to make such a motion. See Carrier v. Hutto, 724 F.2d 396, 401 (4th Cir.1983). The state does not challenge this conclusion on appeal, but argues instead that Maupin suffered no actual prejudice.

The prejudice prong of the Sykes formula has been an elusive concept for the lower federal courts, but several guidelines can be distilled from the Supreme Court’s pronouncements and the case law interpreting those pronouncements. First, it is clear that the prejudice that must be shown must be a result of the alleged constitutional violation and not a result of the trial counsel’s failure to meet state procedural guidelines. See United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982) (prejudice must result from the errors of which defendant complained). Thus, in this case, we must examine whether Maupin was prejudiced by his conviction based on allegedly insufficient evidence. We need not determine whether any prejudice resulted from the actual procedural default. For example, the fact that the Kentucky Supreme Court refused to consider Maupin’s claim because of his procedural default is irrelevant in the prejudice analysis.³ Maupin must therefore demonstrate prejudice based on his constitutional claim, irrespective of his procedural fault.

Second, the burden is on the petitioner to show that he was prejudiced by the alleged constitutional error. Frady, 456 U.S. at 170, 102 S.Ct. at 1595. Moreover, he must show that there was actual prejudice not merely a possibility of prejudice. Id. See also Engle v. Isaac, 456 U.S. at 129, 102 S.Ct. at 1572.

Third, in analyzing a petitioner’s contention of prejudice, the court should assume that the petitioner has stated a meritorious constitutional claim. One must remember that the question decided in Sykes was when a state procedural default would prevent a federal court from considering the merits of habeas claim. Sykes, 433 U.S. at 78-79, 97 S.Ct. at 2502. If a court reviews the merits of the petitioner’s habeas claim in conjunction with the court’s prejudice determination, as the district court did in this case, the court would have merged the Sykes issue with the issue of the merits. See Ford v. Strickland, 696 F.2d 804, 844, 858-59 (11th Cir.) (en banc) (Kravitch, J., concurring in part and dissenting in part), cert. denied, 464 U.S. 865, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983).

The last point is best illustrated by United States v. Frady, supra. In Frady, the petitioner argued that he was prejudiced by a jury instruction which erroneously instructed on the element of malice, leading to a conviction of first degree murder rather than manslaughter. In rejecting this contention, the Supreme Court did not examine whether Frady’s claim was meritorious but turned to whether Frady would have been prejudiced by such an error. Frady, 456 U.S. at 170-72, 102 S.Ct. at 1595-96. Finding the evidence overwhelming on the issue of malice, the Court concluded that the jury instruction, if erroneous, could not possibly have resulted in prejudice. See also Sykes, 433 U.S. at 91, 97 S.Ct. at 2508 (weight of evidence negated any possibility that petitioner was actually prejudiced by admission of inculpatory statement).

Applying these guidelines to this case, we shall assume that there was insufficient evidence for a reasonable jury to find Maupin guilty, which is clearly a cognizable constitutional claim. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Given this assumption, there can be no doubt that Maupin would have been prejudiced by such a constitutional violation. It is self-evident that a conviction based on insufficient evidence would be actually prejudicial to the petitioner.

Having determined that Maupin can properly raise his insufficient evidence allegation, we now turn to the merits of that claim. We conclude that a “rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791. The evidence, as outlined above, could have convinced a rational jury that Maupin fabricated what occurred the night of the killing and that Maupin and Jones killed Drew in a drunken brawl. Although the evidence of Maupin’s guilt was entirely circumstantial, we have clearly stated “that circumstantial evidence alone can sustain a guilty verdict and that to do so, circumstantial evidence need not remove every reasonable hypothesis except that of guilt.” United States v. Stone, 748 F.2d 361, 362 (6th Cir.1984). We also agree with the district court’s conclusion that the reversal of Jones’ conviction by the Kentucky Supreme Court on the ground of insufficient evidence is not dispositive of this case as the evidence adduced at Jones’ trial may have been quite different.

III.

Maupin also alleges that his counsel was ineffective because he failed to move for a directed verdict at the close of all evidence. The Supreme Court recently articulated in Strickland v. Washington, 446 U.S. 668, 104 S.Ct. 2052, 2059, 80 L.Ed.2d 674 (1984), the proper standard for evaluating ineffective assistance of counsel claims. In Strickland, the Court held that:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland, 104 S.Ct. at 2064. Given our conclusion that there was sufficient evidence to support Maupin’s conviction, we conclude that counsel’s alleged error did not result in such prejudice as to meet the second part of the Strickland standard.

Judgment affirmed.

1 . Maupin’s withdrawal of this argument may have been in light of Blair v. Kentucky, 592 S.W.2d 132 (Ky.), cert. denied, 449 U.S. 962, 101 S.Ct. 377, 66 L.Ed.2d 230 (1980), in which the United States Supreme Court refused to overturn an application of the procedural rule in question.

2 . Since Sykes was handed down, a debate has raged in the lower federal courts over when to apply the Sykes "cause and prejudice” test and when to employ the "deliberate bypass” standard of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). See L. Yackel, supra, at § 83 (Supp.1985). This Court has expressed the view that Sykes should apply when the decision to act is the type usually made by the defendant’s counsel without consultation with the defendant while Fay applies when the decision is the type usually made by trial counsel only after consulting with the defendant. Crick v. Smith, 650 F.2d 860, 867 (6th Cir.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1281, 71 L.Ed.2d 464 (1982). But see Payne v. Rees, 738 F.2d at 124 (suggesting holding in Crick was dictum and applying Sykes test). Under the Crick standard, the procedural default in this case was the type that counsel would make without consultation with the defendant, thus the Sykes standard would apply. The district court applied the Sykes standard, and Maupin does not appear to contest that decision.

3 . In fact, if a petitioner could establish prejudice by simply showing that an appellate court refused to consider his claim, the “prejudice" prong of Sykes would be meaningless.